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Date : 25/08/2006
Source: Public Protector South Africa
Title: Mushwana: Investigation of Allegations of Unethical And Improper Conduct


  Media briefing by Adv. M L Muswana Public Protector of the Republic of South Africa (RSA) on the investigation into allegations of unethical and improper conduct by Deputy President Ms P MlamboˇNgcuka relating to her unofficial visit to the United Arab Emirates, Good Hope Parliamentary Chambers, Cape Town

Good morning ladies and gentlemen

Once again it is my singular honour and privilege to welcome you to our third media briefing this year and first such briefing at Parliament and in Cape Town. I particularly welcome members of both print and electronic media and thank you for your continued support by honouring our invitations. While we continue to maintain our respective independencies, it is during these briefings that we share our respective views that enable us to report to the greater masses of our people in a more meaningful and informative way.

Before I continue with our main briefing on our agenda today, I wish to report that we have completed our further investigation that was carried out in respect of Minister Skweyiya. We are about 50% towards completing our report in this regard and we hope to submit it to the President soon. The delay is mainly due to the amount of documentation that we had to go through before we could settle down to write our report.

We will during the same period as stated above issue our report on the alleged failure of certain Ministers and Deputy Ministers to declare their financial interests, as required by the Executive Ethics Code.

All these matters are indeed of complex nature and indeed of public interest. Our office will continue to summon every effort that similar complaints in future are investigated within the shortest possible time. We reiterate, they are indeed complex and convoluted and require a lot of time and concentration.

We now come to the main business of the day, which is a briefing on our report on an investigation of allegations against the Deputy President. We are aware that some of you have already had sight of the report and have reported on it, we however thought we should nevertheless give the media an opportunity to interact with us on the merits and demerits of our findings and recommendation.

As you are by now aware on 15 August 2006, I submitted my final report on an investigation into allegations of unethical and improper conduct by Deputy President P Mlambo-Ngcuka relating to her private visit to the United Arab Emirates in December 2005, to the President of the RSA, the Hon Thabo Mbeki.

At a previous media briefing that we held at our Pretoria offices where we briefed the media on the progress of this matter we indicated that the complaints against the Deputy President relating to her trip to the United Arab Emirates (UAE) was lodged by a Member of Parliament, in terms the provisions of the Executive Members' Ethics Act of 1998. The Act makes it peremptory on the Public Protector to investigate any complaint of a breach of the Executive Ethics Code lodged by a Member of the National Assembly against a Member of the Cabinet. It also provides that the Public Protector must, at the conclusion of such an investigation submit a report to the President, who is in turn enjoined to submit such a report together with his/her comments, to the National Assembly within 14 days thereafter. This means therefore that the report on the investigation of the alleged private trip of Deputy President Mlambo-Ngcuka to the UAE that was funded by the state would be regarded as having been officially released once the President tables it together with his/her comments at the National Assembly. We have now been informed that the Hon President Mbeki has since tabled his report and comments at the National Assembly earlier this morning. We have further been advised that the President concurs with our findings and recommendations. The President further states as follows: "Regarding other comments made by the Public Protector, relating to some of the policy matters investigated and procedural matters, I have instructed the Secretary of Cabinet, as recommended in the Report, to take urgent steps to ensure that Cabinet addresses them and that they be included in an approved Presidential Handbook".

On 10 January 2006, reports were published in the print media alleging that the Deputy President went on vacation leave to the UAE at the expense of the South African taxpayer in December 2005. It was averred that the Presidency commissioned an aircraft of the South African Air Force (SAAF) to transport the Deputy President, her husband and her children to the UAE, even though her visit was unofficial and that the costs involved was in the region of R400 000.

The Presidency issued a statement in response to the said allegations of impropriety committed by the Deputy President. The statement confirmed that the Deputy President did indeed undertake a private visit to the UAE from 27 to 31 December 2005. It was elucidated that an aircraft of the SAAF was used to transport her and her entourage to the UAE stating further that the State is obliged to take full responsibility for her transport and security, irrespective of whether her travels are official or private.

The media covered the allegations in connection with the Deputy President's said visit to the UAE comprehensively. The Deputy President was reported as having stated that her visit was partly work related and partly vacation. It was also alleged that apart from her family, the Deputy President had also been accompanied by Mrs T Skweyiya, the wife of the Minister of Social Development, and Mr S Macozoma, a prominent businessman and an ANC Executive Member.

The Presidency again responded to the continued allegations of impropriety as repeated by the media in their reports of 17 January 2006, reiterating what it stated in its earlier statement. In addition it was, inter alia, stated that:

* The President and the Deputy President do not decide themselves on the modalities and manner of their travels, whether official or private, as it is the responsibility of the South African Police Service.
* The Deputy President was also accompanied on the aircraft concerned by her husband, two children, Mrs Skweyiya and the two children of her personal assistant who is a single parent.
* No official meetings were held during her visit, but the Deputy President and her entourage visited several buildings, sites and a public exhibition on infrastructure development.

* The Deputy President and her entourage were afforded the hospitality of the Government of the UAE that provided them with accommodation during their stay.

On the same day, 17 January 2006, Mr Morgan, a Democratic Alliance (DA) Member of Parliament lodged a complaint with us in terms of sections 3 and 4 of the Executive Members' Ethic Act. He referred to the said statements of the Presidency and the allegations in the media that the Deputy President had been accompanied to the UAE by the spouse of a Minister and senior officials of the ANC. Mr Morgan in essence expressed the view that the allegations of the misappropriation of public money made against the Deputy President point at a possible breach of the Executive Ethics Code as it might amount to:

* Conduct that is inconsistent with her office and not in the interests of good governance.
* Exposing her to a situation involving the risk of a conflict of interest. In this regard reference was made to the allegations that the Deputy President had contact with a construction industry in the UAE during her visit. On this particular excursion she is alleged to have been accompanied by her husband who has interests in a South African construction company.
* An improper benefit for those who accompanied her who are not members of the Government.

It was also suggested that the hospitality offered to the Deputy President by the UAE during her stay amounted to a benefit that needed to be declared in terms of the Code.

Mr Spies, a Freedom Front Plus Member of Parliament, also lodged a complaint with us on 17 January 2006, requesting that we investigate the matter.

The DA moreover requested the Parliamentary Standing Committee on Public Accounts and the Auditor-General to investigate the alleged misappropriation of public funds by the Deputy President. Having considered this request, the Committee decided not to investigate the matter as requested by the DA. The Auditor-General indicated that the matter would be considered during the normal audit of the Presidency. This was of course a retraction from his earlier pronouncements to the effect that he would consider investigating the matter should he be approached with a request to do so.

The buck stopped with us and in February 2006 we commenced with an investigation in terms of the Executive Members' Ethics Act. It was of course at this stage and some time later that some journalist expressed concerns that the investigation was unduly delayed and requested that this matter should be treated as a matter of extreme urgency. While we concede the importance and urgency of this matter, its magnitude and complexity cannot be overemphasised as it will become clearer shortly.

During our investigation we exchanged extensive correspondences with and received voluminous documentation from the Deputy President, the Director-General and Chief Accounting Officer of the Presidency, the Department of Defence and the South African Police Service. We also consulted the Divisional Commissioner: Protection and Security Service of the SAPS, the Secretary of the Cabinet and senior officials of the Office of the Auditor-General.

An international comparative study in connection with the security and transport arrangements designed for Deputy Presidents and office bearers of equal status was commissioned and conducted by researchers of the Centre for African Renaissance Studies of the University of South Africa. We also considered and applied the relevant provisions of the Constitution, the Executive Members' Ethics Act and the Executive Ethics Code.

The whole of this consultative exercise, exchanges of correspondences and the subsequent research as commissioned was intended to assist us to arrive at an appropriate decision. It must further be emphasised that this was a matter of its own kind with no precedent to draw from.

Where reference was made to policies and similar considerations, we had to determine whether the Public Protector has the powers to investigate such government policies. On the basis of South African jurisprudence we came to the conclusion that the Public Protector can investigate the formulation and implementation of government policy. However, whether the contents of a policy is otherwise desirable and appropriate under the circumstances is a political issue that falls outside of the ambit of the jurisdiction of the Public Protector.

The Deputy President departed on board an aircraft of the SAAF from Waterkloof Air Force Base to the UAE on 27 December 2005. On board the aircraft were also her husband, son, a dependant that lives with her, Mrs Skweyiya, a member of the SAPS Presidential Protection Unit, the two children of her Private Secretary and four flight crew members.

The Deputy President returned to South Africa on 31 December 2005, aboard the same aircraft, the same passengers as well as Mr Moopeloa, the South African Ambassador to the UAE.

The total cost of the trip to the UAE amounted to approximately R604 883, excluding the costs of the SAPS Presidential Protection Unit. We were informed that the cost was still an estimate as the final figure would only be known once all payments shall have been effected. The Deputy President and her entourage were accommodating at the expense of the Government of the UAE.

The provisions of the relevant legislation, the information obtained and the evidence submitted during the investigation indicated that:

* The State has a constitutional obligation to protect the Deputy President on a full time basis during her/his tenure and after she/he leaves office. Former Presidents and Deputy Presidents are protected by the State, at substantial cost, despite the fact that they are not performing any official duties. In our investigation it indeed emerged that that the estimated expenditure of the SAPS for the 2005/06 financial year relating to the protection of former Presidents and Deputy Presidents amounted to:

* more that R2 million in the case of former President P W Botha
* R3 million in respect of former President and Deputy President De Klerk
* R5 million for the protection of former President Mandela
* R6,8 million in the case of former Deputy President Zuma

* The protection together with the associated expenditure of the Deputy President in office is in the national interest. It is based on provisions of the Constitution, national legislation and policies approved by the Cabinet.

* The security measures instituted by the State to protect the Deputy President apply irrespective of whether she/he performs official duties or is on vacation.

* The status of Presidency or that of Deputy President does not vacillate with the epoch of being or not on duty, the risk remains the same. At times some unpopular decisions are taken in order to rule or to govern and therefore such decisions do follow those who retire and the risks remain potentially the same, hence the continued protection of those who retire.

* The policies and practices regulating the protection of the Deputy President are in line with most international conventions, standards and Practices.

* The SAPS is responsible for the maintenance of safety and security of the Deputy President.

* The Deputy President is obliged to accept and conform to the protection measures implemented by the SAPS. She/he has no control over the decisions taken by the SAPS in this regard as it is based on government policy and relates directly to the position that she/he occupies and not only to her/him as a person. The risk and security assessments as conducted by the responsible section of the police from time to time directs and give guidance of the modes of transport to be used from time to time as well as the destination that can be approved at any given time.

* The protection measures of the Deputy President currently include that she/he is obliged to travel, locally and abroad, by an aircraft of the SAAF at the expense of the Department of Defence, irrespective of the purpose of the trip. She/he has no choice in the matter.

* The requirement that the Deputy President has to be transported by an aircraft of the SAAF forms part of a total security package. The costs of such air travels are budgeted and accounted for by the Department of Defence.
* Only in circumstances where an aircraft of the SAAF is not available, would the Deputy President be allowed to travel by commercial airline.

In such circumstances, strict security measures would apply (at substantial cost to the State) to ensure that the Deputy President is properly protected, which include creating a safe and sterile departure point at the airport, clearing the seating area in the immediate vicinity of the Deputy President and special measures and clearances at the point of arrival to prevent diplomatic incidents or embarrassment to her/him:

* The security arrangements that apply when the Deputy President travels by commercial airline are cumbersome and cause significant inconvenience to the travelling public and individuals who may have booked seats in advance. It generates the animosity of those affected and causes embarrassment to the Deputy President. The security equipment that has to accompany the Deputy President when she/he travels by commercial airline is risky and costly to transport. There is also always the risk that the luggage of the Deputy President, which often includes documentation and other material that are of national interest, will be stolen or lost. Aircraft of the SAAF transporting the Deputy President enjoys full diplomatic immunity. Utilising this form of transport is conducive to a much more secure travelling environment.

* The mode of transport that is allocated to the President as well as the Deputy President must be such that it will always enable them to respond to any emergency call in any part of the country at the shortest notice. Whether or not they are on duty they remain on call for 24 hours.

* The Deputy President is entitled to take leave whenever it is possible for her/him to do so and to travel to any destination of her/his choice when she/he is on vacation.

* The obligation of the State to protect the Deputy President, even when she/he is on leave, cannot infringe on her/his right to go on vacation to the destination of her/his choice. It also cannot prevent her/him from being accompanied by her/his family and friends/ should she/he wish to take them along. The fact that the mode of transport is prescribed to her/him by the SAPS, for security reasons and in terms of government policy does not disqualify her/him from travelling wherever she/he wants to go on vacation.

* The Deputy President went on vacation to the UAE with the approval of the President. The Presidency was informed of her visit and her Private Secretary had to accompany her, in terms of the practice and policy of the Presidency. Approval in this regard was granted by the Director-General of the Presidency.

* In terms of the policies providing for the full time protection of the Deputy President, she had to be transported to the UAE by means of an aircraft of the SAAF at the expense of the Department of Defence.

* The expenditure incurred by the Presidency for the trip to the UAE was approved by the Chief Accounting Officer in terms of the relevant provisions of the Public Finance Management Act, 1999.

* The Deputy President was entitled, in terms of a policy approved by the Cabinet in 1994, to be accompanied on her vacation trip to the UAE by her family, friends and other passengers of her choice.

* The Deputy President was obliged, by virtue of her position, to consider and accept the offer of the UAE Government to accommodate her and her entourage during their stay in the UAE. Declining the offer could have insulted the Head of State of the UAE and it would have been a contravention of protocol and accepted international conventions on matters of this nature. A decline would have had a negative impact on diplomatic relations between the two countries.

* The hospitality that the Deputy President received from the UAE government did not constitute a 'gift' in terms of the Executive Ethics Code this was not a personal gift but a gift to the office of the Presidency.

* Under the circumstances it cannot be found that the Deputy President acted improperly or that she failed to act in good faith and in the best interests of good governance or in a manner that is inconsistent with her office, as alleged.

She was entitled, as is anyone else in her similar position and status, to take her family, a friend and the children of her Private Secretary with her to the UAE, and no-one therefore improperly benefited from the trip.

The finding we made from the investigation is that:

The Deputy President did not act improperly or in breach of the Executive Ethics Code when she went on vacation to the United Arab Emirates in December 2005.

We recommended to the President that the Secretary of the Cabinet take urgent steps to ensure that the draft Presidential Handbook, which incorporates the relevant policies and prescripts in one document, deals with the matters and issues investigated in clear and certain terms and that it is submitted to the Cabinet for consideration. As we stated above the President is in the process to implement this recommendation.

I wish to thank the Deputy President, the Presidency, the Department of Defence and the South African Police Service and the Department of Defence for their cooperation and assistance in our investigation. It is the nature of things and in conformity with human nature that I should commend and rejoice with those who agree with my findings and recommendations and of course commiserate with those who differ with my findings and recommendations, darkness is followed by sunshine, so their day shall come.

Issued by: Public Protector South Africa
25 August 2006
 

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